ACTA: A Treaty by Any Other Name

Grab your pitchforks and torches, folks, it’s time once again for the internet to get angry! It was barely over a week ago that the web wentdark in protest of SOPA and PIPA, evoking a grass roots movement unlike any other. Millions of angry citizens called, e-mailed, or petitioned their representatives to pull support from the two bills, and many did just that. So, alright! We win!

Well, actually, we don’t. Not yet, anyway. We may be an angry mob, but we’re also much less experienced down the rabbit hole of the political wonderland that our representatives call home. Allow me to introduce the Anti-CounterfeitingTradeAgreement. Imagine a version of SOPA or PIPA, agreed to on an international level.

Since it was made public by Wikileaks in 2008, there have been strong opponents of ACTA, but far fewer than the multitudes who railed against SOPA or PIPA. The best-known piece to have come out against ACTA is a 2010 letter signed by over 75 legal academics, including New York Law School’s own ProfessorDavidJohnson.

In recent weeks, a large number of online protestors came forward, begging the president not to sign ACTA, but turns out he had already signed it last October — (whoops! A little late guys!) — at a signing ceremony in Tokyo. Also in attendance and signing on: heads of state from Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea.

With ACTA signed into law by President Obama, American protestors, realizing they were a little late to the protest party, claim, in effect, that the party ain’t over yet. Petitions and articles are cropping up, questioning the constitutionality of President Obama signing ACTA with no intention of letting Congress ratify it.

The issue comes down to this: Does President Obama need this “treaty” ratified by Congress as protestors claim, or is this an “executive agreement” within his power to sign into law astheadministrationclaims? Plenty of opinions out there. (see here, here, and here). LASIS sticks to the facts.

First and foremost, let’s make sure we all understand the difference between an executive agreement and a treaty. Basically, anexecutiveagreement can only be negotiated and entered into through the president’s authority (1) in foreign policy, (2) as commander-in-chief of the armed forces, (3) from a prior act of Congress, or (4) from a prior treaty. EA’s can trump state laws, but not federal laws. Treaties on the other hand, need to be ratified by Congress, and can change federal laws. Get it? Beautiful.

The first question we need to answer is, “Would ACTA change any federal laws?” If it does, it is clearly a treaty and would need to be ratified by Congress.

Article 1.2 of ACTA states:

“Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”

Now I’m no expert on international agreements, but that clause seems to me to be saying, “My country can ignore whatever parts of this new law we want to, if we feel any of it doesn’t synch our own country’s laws.” As it turns out, people who are experts on international agreements agree with me. Including the OfficeoftheUnitedStatesTradeRepresentative. So it doesn’t seem to me that any laws would be changed by ACTA…

Of course, if we can all ignore any part of ACTA we don’t like, then what the heck is the point of the act in the first place? A fair question, and one alreadyasked (in this context) by MikeMasnick, of Tech Dirt, a terrific and prolific writer on the subject. He believes that this clause is just a method of getting the thing passed, and now that it was, we’ll see lobbyists screaming and hollering about “international obligations” to eventually get the laws they want passed, passed. And they’ll do it using ACTA as their platform.

I agree 100%. But that doesn’t change the fact that this act isn’t changing any laws. And although we can all point at very obvious ramifications this will have on our legal system, we can’t use that as a legal basis to knock it down or demand ratification by Congress.

A key question, and one that really doesn’t have an answer yet, is whether or not the president can enter into an executive agreement involving intellectual property at all. IP is one of the enumerated powers delegated to Congress in Article I Section 8 of the U.S. Constitution and many, including Senator Ron Wyden (D-Oregon) argue that President Obama has nobusinessmakingIPpolicy. Recently, he has submitted a letter to President Obama askingthreeveryimportantquestions, the third being:

“What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law?”

Back to the Constitution. Article I Section 8 says that one of the Powers of Congress is “To promote the Progress of Science and use Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is known familiarly as the “CopyrightClause.”

As I said, Senator Wyden’s question is an important one. As I said too, we just don’t know the answer.

Ooana A. Hathaway and Amy Kapczynski at the American Society of International law pointout: “No comparable agreement has been concluded in this way. Thus if concluded as a sole executive agreement, it would represent a significant expansion of the scope of such agreements.”

Perhaps. But that does not mean that President Obama’s signing ACTA was an abuse of power. It just means these are untested waters.

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36 Responses

Hi, Im a lawyer from Argentina, some websites claim that there are not fair use provisions in ACTA, but we can find this:

8. In providing adequate legal protection and effective legal remedies pursuant to
the provisions of paragraphs 5 and 7, a Party may adopt or maintain appropriate
limitations or exceptions to measures implementing the provisions of paragraphs 5, 6,and 7. The obligations set forth in paragraphs 5, 6, and 7 are without prejudice to the RIGHTS, LIMITATIONS , EXCEPTIONS , or defences to copyright or related rights infringement under a Party’s law

Honestly man, I just want everyone to stop fighting. I think the internet should be left as it is, and that is that. I’m in a band and am looking forward to recording music and having people torrent it. I’m going to give my music out for free for a while. I already do now. How am I supposed to give out free music online with SOPA and PIPA? I can’t email my stuff to tons of people, because I wouldn’t know who to email it to.

@Mr. Pereyra – I haven’t heard the fair use complaints myself, but what you have pointed out seems to contradict any concerns very nicely.

@Dan – Keeping in mind that I am completely opposed to all three of these bills, it is important ot understand that they ARE in fact three different bills.

SOPA and PIPA have nothing to do with eachother and especially nothing to do with ACTA. Piracy is a major concern for the entertainment industry and not one they’re going to just ignore. The problem is SOPA and PIPA are much too far reaching and remove a lot of the due process we deserve.

That said, no one is going to shutdown a website where you are giving away your music, unless you are also giving away artist’s music who do care.

“”This new treaty gives foreign governments and copyright owners incredibly broad powers. If you are alleged to have violated a copyright, your website can be shut down without a trial and police may even show up at your door to take you to prison. It doesn’t even have to be someone in the United States that is accusing you. It could just be a foreign government or a copyright owner halfway across the world that alleges that you have violated a copyright. It doesn’t matter….. Big sites like YouTube, Facebook and Twitter may just decide that it is too much of a hassle to monitor millions of pieces of content. Allowing users to constantly post content on their sites would be a huge risk. In fact, if they are found to be allowing “copyright infringement”, those sites could be permanently shut down””

??? is this for real?? or are we just geting paranoid?, of course, what can you expect from a iranian news website, but do we really have to worry about the future of Wikipedia???

So excuse me for the confusion, but if Congress wants so badly the chance to ratify this act (presumably so they won’t ratify it and it dies), why don’t they just make a law that nullifies it entirely? EA’s can’t trump laws, so change the bloody law!

I’m convinced no one has actually read any of these bills! I spent all day yesterday on Twitter seeing constant updates about how “Did you hate SOPA and PIPA? Then you’ll really hate ACTA!” But this article makes ACTA seem like a declawed kitten.

@William – More senators arent probably because they want to stay as far away from this stuff as possible. They saw the SOPA uprising and now they’re stuck picking between the youth generation on the internet or the old folks who think we’re all thieves.

People would rather be angry than informed when it comes to things like this. Amazing that so many are still calling for Obama not to sign. I don’t think 1.2 is as clear as you make it sound. The UK has said that countries will be expected to enact legislation after ACTA goes into effect. That would change the source of the argument here.

Informative article, I cant see it having much of an effect on our laws without being ratified. Same as the Kyoto agreement and other international “contracts” that have had lilttle to no bearing on our policy for trhe same reason. Although you made a good point of it being used as a platform for laws to be passed much like Kyoto…

@ Ryan Golden – you said that you know the author and thought he’d go the other way. Many law students (seems students write these pieces) are knee jerk anti-regulation for IP stuff. And I think the author likely feels that way himself but you’re right, it’s refreshing to see a fair article on the subject — everything has become so politicized.

Coming from a backround in Information Technology, Specializing in Network Administration:

I believe the current text proposed before the multiple heads of state needs to be re-written, with opinions from several thousand experts from the various fields involved. Why? Because the current ACTA bill that is signed, not ratified, was signed without opinions from technology experts. Why is this so important? Because this bill will very much have ALOT of profound effects on how the internet functions as a whole.

@Lemuel: There is film I saw on the Daily Show of our senators asking to bring in “nerds” to help with the bill. THEY SHOUND LIKE HIGH SCHOOL BULLIES! Seriously! These are out government officials! I THINK THE TERM IS EXPERTS NOT NERDS!!!!

@Lemuel: I also work in IT and I think that while a lot of people don’t understand what we do or how the internet actually works, Congress apparently doesn’t understand AT ALL. It’s a shame because Obama has been SUCh a tech friendly prez for most of his tenure.

Lets say you are going to do research on a particular subject. Depending on the research, it could take you months to put up a paper that fits “Legal” standards. Everything that has a copyright on it is subject to authorization from the original person who got it copyrighted to be used on whatever you are creating. Why? Because the ideas or opinions that you propose on your research paper can be copyrighted or patented by someone else. That means, that under ACTA, the “Trade Enforcement Agency” or whatever agency will be in charge of enforceing ACTA, will be able to prosecute you on whatever punishments the geographical region you are located in has.

At least thats my legal understanding of it.

Now, in order to understand why ACTA is so harmful to the current anonymity of the internet, is because of the technology that has to be developed in order to enforce ACTA.

You have heard about the FBI wanting to monitor Social Media. That is just the tip of the iceberg. ACTA gives justifyable reason to spend tax dollars on research for more advanced monitoring software of data that flows in and out of the web. This also means that, if the federal government thinks you are using your access for illegitimate reasons, they can ban you from your internet access.

Think about what this means. To be banned from the internet. How will this be possible. From a technology standpoint, this means that the type of security that will be implemented on the internet will require your personal information to be available to any company or any one who thinks you are stealing their material, and/or downloading illegal material.

and thats just from a basic understanding of technology. Im glad there is alot of understanding on this issue in terms of how ACTA was drafted. @PatriotAnon i saw that too. i was very offended that politicians think that we are just a bunch of nerds. These are supposed to be the heads of our country. They are supposed to have the common sense to say “Hmm, i wonder if we should ask the people that make this run on a daily basis, if such a bill can even work”

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